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MARK A. URICK and HEATHER URICK, - page 12 / 19





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breach of contract claims] was never disputed at trial, as [Huizinga] admitted that he

stopped payment on the [promissory] [n]ote and violated the [s]ecurity [a]greement.”

Appellant’s Brief at 17. The Uricks are correct: Huizinga failed to comply with the terms

of the agreements by stopping payments after January 2003. In fact, Huizinga admits as

much in his brief (“Huizinga . . . ceased making payments [as] required under th[e]

[p]urchase [a]greements . . . [,]” Appellee’s Brief at 31). We need not address this

contention at length, however, because, as we explain below, Huizinga’s failure to

comply with the agreements’ terms is not dispositive of the case. See Sees v. Bank One,

Ind., N. Am., 839 N.E.2d 154 (Ind. 2005) (fraud is an affirmative defense to enforcement

of a contract).

The Uricks contend there was insufficient evidence to support the finding of actual

and constructive fraud. When reviewing a claim of insufficient evidence, we neither

reweigh the evidence nor judge the witnesses’ credibility. Hart v. Steel Prod., Inc., et al.,

666 N.E.2d 1270 (Ind. Ct. App. 1996), trans. denied. Although the evidence may

conflict, the judgment will be affirmed if there is substantial evidence to support it. Id.

We will reverse only when there is an absolute failure of proof on some issue necessary

to sustain the judgment. Id.

The elements of actual fraud are: (1) a material representation of a past or existing

fact by the party to be charged that; (2) was false; (3) was made with knowledge or

reckless ignorance of its falsity; (4) was relied upon by the complaining party; and (5)

proximately caused the complaining party’s injury. Youngblood v. Jefferson County Div.

of Family & Children, 838 N.E.2d 1164 (Ind. Ct. App. 2005), trans. denied. Actual fraud 12

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